D and C
[2010] FCWA 4
•14 JANUARY 2010
[2010] FCWA 4
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY COURT ACT 1997 |
| LOCATION | : REGIONAL CENTRE | ||
| CITATION |
| ||
| CORAM |
| ||
| HEARD |
| ||
| DELIVERED |
| ||
| FILE NO/S |
| ||
| BETWEEN |
|
AND
C
Respondent/Father
Catchwords:
FAMILY LAW - child related proceedings, proposed relocation - The regional centre to
Perth, best interests, equal shared parental responsibility, equal time
Legislation:
Family Court Act 1997 - s 66 and s 89AA
Family Law Act 1975 - s 60CC
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Ms J Lohrey |
[2010] FCWA 4
Solicitors:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Lohrey Family Lawyers |
Case(s) referred to in judgment(s):
McCall and Clark [2009] FamCAFC 92 Morgan and Miles [2007] FamCA 1230 Taylor and Barker (2007) FLC 93-345
[2010] FCWA 4
1 Ms D (“the mother”) and [Mr C] (“the father”) are the parents of [Brianna] who was born [in] November 2003.
2 The father and the mother have a long history of dispute over the care
arrangements for Brianna and now the mother requests that I make orders permitting
her to relocate from the [regional centre] where Brianna has resided since her birth.3 The father opposes the proposed relocation of Brianna and seeks himself a
variation of the existing parenting arrangements to provide that Brianna resides with each of the parties on an equally shared care basis, that is the parties have equal shared parental responsibility.
4 If she is not permitted to relocate then the position taken by the mother at trial
was that she would leave the regional centre and remove herself from Brianna’s life, although her very strongly stated position to that effect during the trial appeared to soften slightly towards the end of the trial.
5 In any event, in her application she sought that there be a change to the current
orders, particularly those providing for Brianna to spend time with the father on Wednesday nights. She seeks that “mid week access be denied”. In the event that the mother is permitted to relocate with Brianna she proposes that the father have contact by telephone for 10 minutes each Friday evening and one half of all term school holidays with three weeks for the Christmas holidays, with the cost of transport being shared.
Background
6 The mother was 43 years of age and the father 44 years of age, at the time of
trial. The parties never lived together, but they were in a relationship in 2003 as a
result of which Brianna was conceived.7 The mother has three other children, [Ellen] now aged 23, born of [Mr H], [Jack]
14, born of [Mr F], and [Don] 11, born of [Mr H]. The mother also had another child
by another father, however, sadly, that child did not survive beyond four days.8 Ellen resides in Perth and has recently married. She has no children and
undertakes a “social work” role with [a charity organisation]. She is not a qualified social worker, but has undertaken either Certificate III or IV in social work. She resides in [the southern suburbs] and is pursuing her studies in social work.
9 Jack attends the high school in the regional centre and is presently in Year 9. The mother tendered into evidence a school report for Jack, who is described by his teacher and school principal as:
“a polite quiet and mature student who was a pleasure to have in the class room. He is a respected member of the class who is liked by all his peers. Jason’s perseverance and strong motivation to follow through with all his tasks are reflected across all areas of learning. Well done.”
[2010] FCWA 4
10 Jack appears to be a student who is committed to his studies and who is
performing well.
11 The mother also tendered into evidence a letter from [Mrs W], class teacher for
Don and co-signed by the school principal of the [local] Primary School where both Jack and Brianna attend. The letter refers to the fact that Don has been a “commendable student at school today” and goes on to say that he is a “thoughtful and helpful big brother”, he particularly having returned Brianna’s library book “with his own so that he could read a new book to her”.
12 Brianna would seem to be cast in the same mould. She is considered by all the witnesses who gave evidence about her demeanour, to be a polite, well mannered and bubbly little girl who, despite the extraordinary tensions between her parents, to which I will refer later, appears to be reasonably well adjusted.
13 Jack, Don and Brianna all reside with their mother in the regional centre.
14 The father has two children of a prior marriage, namely, [Mike] aged 26 and
[Allan] aged 24. He also has another son, [Andrew], aged 18 months. Mike and Allan live independently of the father in the regional centre and maintain a close relationship with him and also with Brianna. Andrew is a child of the father’s relationship with [Ms E] [(“Vikki”)] with whom the father has had quite a longstanding relationship, however as a result of recent events there has been some disruption to their relationship and the father is hoping to rebuild that relationship if possible. He says that the relationship has been significantly damaged as a result of the conduct of the mother towards Vikki and hopes that once the current round of proceedings between the parties are resolved there will be less negative interaction with the mother.
15 For reasons that appear below, I do not necessarily share the father’s confidence
in the mother’s ability to act with any form of propriety. She presented as somebody with very significant unresolved issues, so much so, that at the conclusion of the trial I made orders requiring the mother to attend the “Building Connections” course run by Centrecare in the regional centre and to attend such counselling as may be recommended by the Director of Centrecare, [in the regional centre], or her nominee.
16 The mother presently drives [a delivery vehicle] on a part-time basis. She does
so under the conditions of an extraordinary licence that has been granted to her by the Magistrate in the [local] Magistrates Court. The father is presently employed by the local shire and describes himself as a [gardener], although it appears he undertakes a variety of jobs for the [employer].
Background to the current arrangements
17 The proceedings between the parties commenced in 2005, with orders being
made on 18 October 2005 by the Magistrate in the [local] Magistrates Court. That order provided that the father have contact with Brianna each alternate Saturday between 9:00 am and 5:00 pm.
18 There were also orders made at that time restraining the parties from
communicating with each other, other than in writing. The matter was adjourned to
[2010] FCWA 4
the Family Court and on 30 May 2006 orders were made, to operate until further order, that Brianna reside with the mother, the parties have joint responsibility for the long term care, welfare and development of the child and that the father spend time with Brianna on each alternate weekend from Friday afternoon at a time suitable to the father until Monday morning at a time suitable to the father, with collection and return to be via the [day care centre]. The orders also provided for telephone contact on Brianna’s birthday, the father’s birthday and additional physical contact associated with their respective birthdays. Special arrangements were ordered for the Christmas school holiday period such that the parties have Christmas in alternate years.
19 Both the parties were restrained from changing Brianna’s residence from the
regional centre. The parties were again mandated, other than in the event of an
emergency, to correspond with each other in writing or via the father’s mother.20 There was some further definition of the orders on 22 January 2007 and then, following a trial heard by his Honour Justice Crooks on 18 and 19 February 2008, orders were made in the following terms:
“1 The child [Brianna D] born [in] November 2003 reside with the
respondent [Ms D].2 The parties have joint responsibility for the long term, welfare and development of the child. 3 The applicant [Mr C] spend time with the child as follows:
(a) subject to these orders on each Wednesday from 3:30 pm to 8:30am the following day with the Applicant to collect the child from and return her to [day care centre]. The Respondent meet any costs payable to [day care centre] in relation to the Wednesday contact period; (b) on each alternate weekend from Friday afternoon at a time suitable to the Applicant until Monday morning at a time suitable to the Applicant, with the Applicant to collect the child from [the day care centre] on Friday afternoon and return her thereto on Monday morning provided that in the event that the weekend falls on a long weekend including a Monday holiday, the child be delivered to [the day care centre] at 10:00 am the following morning; (c) telephone contact on the child's birthday and additional physical contact for the weekend, as provided for in paragraph 3(b) hereof, closest to the child's birthday, unless the child's birthday already falls on a contact weekend; (d) telephone contact on the Applicant's birthday and additional physical contact for the entire weekend immediately preceding the Applicant's birthday, unless the Applicant's birthday already falls on a contact weekend; (e) in the event that alternate weekend contact falls on the Respondent's birthday, all contact on that weekend be suspended;
[2010] FCWA 4
(f) in the event that alternate weekend contact falls on the birthday of [Jack D] or [Don D], all contact on that weekend be suspended; (g) in the event the alternate weekend contact does not fall on Father's Day, the Applicant have contact with the child on the Father's Day weekend as provided for in paragraph 3(b) hereof; (h) in the event that the alternate weekend contact falls on the Mother's Day weekend, all contact on that weekend be suspended; (i) in each even numbered year in the Christmas school holiday period from 31 December until 24 January commencing 2008;
(j) in each odd numbered year in the Christmas school holiday period from 20 December until 17 January commencing 2009; (k) for the first week of the end of first term school holidays and the weekend contact be suspended during the end of first term school holidays; (1) for the Easter holiday period in each alternate year
commencing in 2009.4 In the event that the weekend the Respondent spends time with the said child includes a Friday the child is to be delivered by the Respondent, [Ms D] to [the day care centre] by 3.00pm.
5 The Respondent be at liberty to request [the day care centre] to issue their accounts in his name and to make appropriate arrangements for the collection of the child from that venue.
6 The Applicant ensure that the child is not provided with food and drink high in sugar, preservatives and colouring during contact visits.
7 The Applicant and the Respondent shall each inform the other of any medical ailments of the child.
8 Both parties shall provide not less that 14 days' notice of any changes of address and/or telephone number.
9 Both parties refrain from changing the residence of the child from within the [the regional] area.
10 The Applicant be restrained and an injunction is hereby granted restraining him from allowing the child to come into contact with any of the business paraphernalia or clients of the business ["XXXX"].”
11 Other than in the event of an emergency, all communications between the Applicant and the Respondent shall be either:
(a) in writing at contact changeover; or
[2010] FCWA 4
(b) via the Applicant's mother on telephone number [xxxxxxxx]. 12 In the event that the Applicant is unable to collect or return the child, his mother, [Mrs C], be at liberty to collect and/or return the child.
13 The Respondent be restrained and an injunction is hereby granted restraining her from leaving the child in the supervised care of [Mr D]
14 Where possible, the child is to be transported in a vehicle other than that bearing the number plate “[XXXXX XXX]”.
15 The applications and responses otherwise be dismissed.”
21 Following the orders made by his Honour Justice Crooks there were several applications for contravention, however these were resolved prior to the trial.
22 At the commencement of the trial I indicated to the parties that I interpreted the
words “the parties have joint responsibility for the long term care, welfare and development of the child” in his Honour Justice Crooks’ orders as meaning the parties have equal shared parental responsibility. It appears that the wording has carried over from the earlier orders made by her Honour Magistrate Duncanson prior to the commencement of the amendment to the Family Court Act in line with the Family Law Amendment (Shared Parenting Responsibility) Act of 2006, which commenced on 1 July 2006
23 My interpretation is reinforced by the comments made by his Honour on 18 February 2008, at page 42 of the transcript, where his Honour says:
“… there is already an order which will be a final order that there be joint responsibility, which means that there has got to be some involvement. That order was made previously.”
and further:
“There has got to be some proven means of communication.”
24 I have no doubt that his Honour intended to place upon the parties the mutual obligations that flow from an order for equal shared parental responsibility.
The evidence
25 The mother had filed an affidavit of herself and she was cross-examined by counsel for the father.
26 The father filed affidavits of himself, his son, Mike C, his mother, Mrs C,
[Mr F], a long term friend of the father’s, [Ms R], a friend with small children, one of whom is Brianna’s age, and [Ms B], the father’s former wife and mother of Mike and Allan. The father had attached to his affidavit a short report from Psychologist [Ms W]. The mother quite properly raised an objection to the receipt of the report, however Ms W was able to make herself available for cross-examination on the report and accordingly the same was accepted into evidence.
[2010] FCWA 4
27 The mother cross-examined each of the witnesses who had filed an affidavit for the father, the father himself and Ms W.
28 Each of the father’s witnesses was unshaken in their cross-examination and I
accept that they were open and frank about the matters to which they had sworn in their affidavits and in answer to questions in cross-examination. The cross- examination in each case served, in my finding, only to reinforce the position as stated in their respective affidavit, and in each case, where a concession was required, it was appropriately given.
29 The father was also an impressive witness. Whilst I have no doubt that at times
he struggled to understand the process, I am satisfied that he did his very best to be honest and forthright in the giving of his evidence. He was unshaken in cross- examination, which was conducted in a highly vitriolic, insulting and intensely personal way. Throughout, the father maintained his composure and decorum, and responded appropriately.
30 I have no doubt that it was from my observation of the mother and from her
evidence in the proceedings that it was her intention to insult and demean the father
and introduce irrelevant material under the guise of “credibility”.31 The mother’s presentation was in sharp contrast to that of the father and his
witnesses. She was openly hostile to counsel for the father and the Court. She was insulting to the father and Vikki at every available opportunity, as well as to the Court during the course of her evidence and during her summary. Her affect and presentation was one of extreme anger with a demonstrable lack of impulse control. I consider the mother to be opportunistic at any point in her evidence where she felt some advantage might be gained, irrespective of the merits of the matter.
32 The mother also experienced “memory lapses” about evidence that she had
given during the course of the trial. It appeared her memory failed also as to matters that had been raised before his Honour Justice Crooks, for example, the mother was adamant that his Honour Justice Crooks had made certain adverse findings against the father, but could not identify them in the transcript, choosing to suggest that the transcript was in error. Similarly, on occasions during the course of the trial, when the mother was reminded of a statement she had made earlier, that was contrary to the representation then being made, she denied the accuracy of the court’s notes or counsel for the father’s notes, despite the fact that they were in accord.
33 The mother was a most unimpressive witness and her conduct throughout the
trial was most unimpressive, however, that being said, her hostility to the Court is not something that impacts upon my decision in this matter, but is indicative more of the personality type of the mother and her general presentation.
34 I was left with no doubt that the mother would be quick to draw adverse
conclusions, be unforgiving (as quite clearly was the case with the father’s mother, Mrs C, when the mother thought she had been “snubbed” and thereafter “told her in no uncertain terms” not to communicate with her) and projected throughout the trial a palpable hatred of the father and Vikki.
[2010] FCWA 4
35 On the other hand it is quite clear that the mother, who has had to struggle
against some extraordinary difficulties during her lifetime, has very successfully produced children who are highly regarded. It is very much a credit to her and the sharp contrast with her presentation during the trial is quite remarkable.
36 On an assessment of the evidence however, I prefer, wherever there is a conflict
between the position of the father and any of his witnesses, that evidence over the
mother’s unless otherwise specified in these reasons.37 Notable in her absence was Vikki, the father’s partner. Vikki has a daughter,
[Michaela] aged 8, and has been in a relationship with the father for the most part since the relationship between the mother and the father came to an end. In those circumstances, I would have normally expected Vikki to give evidence and to have filed an affidavit. When questioned about that failure the father’s position was that Vikki had had enough of trying to deal with the mother and her constant allegations, which were brought to a head by a letter sent to Vikki by the mother dated 20 October 2009 in the following terms:
“REGARDS CUTTING MY CHILD’S HAIR AGAINST HER WISHES.
Brianna informed me that you had cut her hair again and she started to cry. My daughter received a haircut from a professional hairdresser on 7 October 2009, so it was quite unnecessary and unwanted of you to cut her hair on the weekend of 16/10/09 to 19/10/09.
You were informed by [Ms J] of the Department of Child Protection on 21 August 2008 that you had no right to cut the child’s hair, despite that warning you continually do it. Only a malicious and evil person would deprive a mother of the privileges of being a mother (eg having a say in how my child’s hair sits) and go against the wishes of a child so I am inclined to believe you abuse Brianna in other ways also.
Yours faithfully
(Signed) Ms D ”
38 The letter was copied to the Department of Child Protection. The mother herself
had attached a copy of the letter to her affidavit and in her evidence was clear that she
had intended the letter to be offensive and hurtful to Vikki.
39 Vikki responded:
“Ms D
Congratulations, you have achieved what you set out to do. You have once again deeply hurt me with your foul and extremely hurtful totally unfounded accusations about me.
You have once again caused great damage and pain to the relationship I have with [Mr C].
[2010] FCWA 4
I will be totally removing myself from Brianna's life. If this is what it takes for you to stop playing this destructive, evil game through Brianna, then it is with great pain and a huge sense of loss I shall do this.
I have nothing to be ashamed of in relation to the relationship I have with your daughter Brianna.
I have genuinely been an honest, reliable, caring and loving role model and friend to your daughter, I love her very much. And I cannot bare (sic) to see you hurting her in this way.
I have not cut Brianna's hair, as you have so often accused me. You know this.
I have never been contacted by The Department of Child Protection (or any other name they have been known as) in relation to any such claims or any other.
I have never abused your daughter physically, emotionally, psychologically or in any other form.
I know I should not have approached you Thursday the 22nd October 2009. I allowed you and your malicious lies to get the better of my emotions and behaved in a way I am not proud of. Take it as you will, I think after 5 years of your abuse toward me I simply have had enough and my verbal outburst was way over due.
And now I am informed you are attempting to have me charged over damage to your [van]. Claiming I hit your boot area of the [van]. In pure frustration I slapped your driver's rear door, with an open hand. Again you know this, (I informed police of this honestly before your accusations were made) and the fact you would sleazily attempt to have me charged and liable for damages obviously obtained by you at a prior time again confirms to me that you are a despicable liar with absolutely no boundaries.
After 5 years of the accusations against me by you I have had enough.
I will be seeking legal advice and possible representation as to the ongoing slander and defamation of me. This will be sort (sic) both personally and professionally.
I will rely on much evidence from persons/customers in your taxi whom you have spat your evil rubbish out to. We both know there are many.
I love your daughter Brianna very much, but I will from this point remove myself from her life, with the hope you will stop hurting her with your evil lies and manipulating games you're bitter, jealous twisted self play.
Only you need to live with your conscience.”
[2010] FCWA 4
40 The mother then responded with a short note:
“The camera on the [van] will prove you’re a liar.
I barely skimmed through your note, your lies and manic ranting don’t impress me. Everything you say about me is exactly what you are and eventually like [Mr C] your lies will CATCH UP ON YOU. My conscience is clear.
The next time your mate walks up my driveway he’ll be charged with trespass.”
41 Oddly enough, it is the mother who claims throughout to have been the victim of
ongoing abuse and slander and the father being “in her face”, however I find it is more
likely that the reverse is the case.42 In the circumstances, whilst I would have liked to have heard from Vikki, I
entirely understand her refusal to participate in the proceedings. Clearly, Vikki and Brianna, and Vikki’s daughter Michaela and Brianna, enjoy a warm relationship and it would be a shame if Brianna was deprived of the opportunity of that being resurrected. I am left with little doubt however that the mother will maintain a stance of malice against Vikki and would see the loss of the father’s relationship with her, and the loss of Brianna’s relationship with her and Michaela, as being a positive result.
43 One of the orders that the mother sought was an order with an injunction to be
imposed upon Vikki, preventing her from “getting piercings on the child or cutting off
the child Brianna’s hair”.44 The father indicated at the outset that he would consent to such an injunctive
order being made against him and that being extended to him not causing, permitting
or suffering any person to do so.45 The issue of Brianna’s haircuts assumed a quite significant dimension in the course of the trial on many levels to which I will refer later in these reasons.
The applicable principles
46 This is a parenting case that falls into the category of cases involving a proposed
relocation with the children by one parent. Prior to the 2006 amendments introduced by the Family Law Amendment (Shared Parenting Responsibility) Act 2006 and as adopted in the Family Court Act 1997, the starting point for such cases was a consideration of the core principles that had developed from a series of cases as summarised by Boland J in her judgment in Morgan and Miles [2007] FamCA 1230. In discussing whether different principles were to apply following the amendments to the Act, her Honour said at paragraph 74 of her reasons:
“The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain
[2010] FCWA 4
such an order. The Act provides for the careful exercise of a structured
discretion to determine the appropriate order to be made.”
47 At paragraph 80 her Honour further said:
“It follows from my exposition of the legislation, that earlier core
principles:
- that the child’s best interests remain the paramount but not sole
consideration;- that a parent wishing to move does not need to demonstrate
“compelling” reasons;- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and - the child’s best interests must be weighed and balanced with the
“right” of the proposed relocating parent’s freedom of movement,remain valid.”
48 Relocation cases are simply cases that involve the court making a parenting
order where one of the parties proposes to relocate with the consequential impracticalities that inevitably arise in terms of the physical contact between the children and the parent “left behind”.
49 In this case orders have previously been made that the parents share parental
responsibility.
50 Given this, I must then also consider the consequences that flow from that
arrangement. As observed by the Full Court in McCall and Clark [2009] FamCAFC
92:
“69. However, it appears to us that dealing with a parenting application involving a relocation where the presumption applies and an order is made for equal shared parental responsibility a court must consider:
(a) whether equal time (or substantial and significant time) with both parents would be in the child’s best interests; (b) consider and weigh up an equal time (or substantial and significant time) regime against all the factors having advantages for the child in the relocation proposal, including considering the matters in s 65DAA(5); and then (c) consider whether an order should be made for equal time (or substantial or significant time) in one location, or for the child to reside with one parent in a distant location,
[2010] FCWA 4
with such other orders as will maintain the benefit of a meaningful relationship for the child if appropriate to do so;”
The Law
51 Section 66 of the Family Court Act 1997 sets out the objects and the principles underlying those objects that must be applied by the court determining parenting cases.
52 Section 66 provides:
(1) [Object of Part] The objects of this Part are to ensure that the best interests of children are met by:
(a)
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)
protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)
ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)
ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) [Principles underlying object] The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)
children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)
children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)
parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)
parents should agree about the future parenting of their children; and
[2010] FCWA 4
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
53 Section 66C sets out how a court is to determine what is in a child’s best
interests and further prescribes that I must, under s 66C(4) consider the extent to
which each parent has fulfilled or failed to fulfil their responsibilities as a parent.54 As I have mentioned earlier, this application proceeds on a premise of the acceptance of equal shared parental responsibility.
55 Section 89AA requires the Court to consider whether children should spend
equal time or substantial and significant time with each parent in circumstances where
the child’s parents are to have equal shared parental responsibility.56 Section 89AA provides as follows:
Equal time
(1)
If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)
consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)
consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)
if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a)
a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)
the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)
consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
[2010] FCWA 4
(d)
consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)
if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) [Substantial and significant time] For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and (ii) days that do not fall on weekends or holidays; and (b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and (ii) occasions and events that are of particular significance to the child; and (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent. (4) [Subsection (3) does not limit other matters to which court can
have regard]Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and (b)
the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
[2010] FCWA 4
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and (d) the impact that an arrangement of that kind would have on the child; and (e) such other matters as the court considers relevant.
57 In Taylor and Barker (2007) FLC 93-345, comment was made by the Full Court about the approach to be taken in relocation cases and the need to give separate and real consideration to the children spending equal, or substantial and significant, time with each parent as a requirement of the amended Family Law Act 1975 [as incorporated in the Family Court Act 1997], in cases where parents have equal shared parental responsibility, such as the case before me.
58 Consideration of the relevant sections of the Family Court Act 1997 show in this case that a large number of the matters that are enumerated in the various sections to some degree overlap and to some extent, in this case, are not relevant.
59 The overarching principle is that prescribed in s 66A, namely that in deciding
whether to make a particular parenting order in relation to a child, a court must regard
the best interests of the child as the paramount consideration.60 In this case Brianna has not expressed an opinion to which weight could be
attached given her age and the absence of any properly structured enquiry as to her
wish in the matter in any event.61 The core matters relevant in these proceedings are considered below.
62 A consideration of these core matters will also of necessity involve consideration
of the matters prescribed in s 66C(4), which are directed to the extent to which each
party has fulfilled or failed to fulfil responsibilities as a parent.the benefit to the child of having a meaningful relationship with both of
the child’s parents;
63 This expression has recently been the subject of consideration by the Full Court
of the Family Court in McCall and Clark (supra) where the Full Court considered how a Court is to determine the benefit to a child of having a meaningful relationship with both of the child’s parents. The Full Court, referring to the equivalent sections of the Family Law Act, said this:
“118 It appears to us there are three possible interpretations of
s 60CC(2)(a):
(a)
one interpretation is that the legislation requires a court to consider the benefit to the child having a meaningful relationship with both of the child’s parents by examination of the evidence of the nature of the child’s relationship at the date of the hearing, to make findings
[2010] FCWA 4
based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and (c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”). 119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120. We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.”
... 122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship ...”
64 For all the conflict that is apparent in this case it emerges that both parents
believe that it is in Brianna’s interests to have a meaningful relationship with the other. In her cross-examination of the father, the mother suggested that if he was concerned about her parenting, or any aspect of her parenting, then he should have applied for Brianna to live with him fulltime. He responded that he believed that it was in Brianna’s interests to have a relationship with her and that that was why he sought the orders that he did in terms on an equality of time.
65 The mother also indicated that Brianna should maintain a relationship with her
father, although the practicalities of advancing that relationship, having regard to her
proposals, is something that I will consider further in these reasons.
[2010] FCWA 4
66 The position that the mother adopted, irrespective of any effect on Brianna, that
if I failed to permit her to relocate from the regional centre then she would leave anyway and leave Brianna with her father, of itself indicates that not only does the mother hold the view that is there no risk to Brianna in her father’s care, but also there is a benefit to her in maintaining that relationship.
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
67 Brianna is surrounded by an abundance of family members with whom she enjoys good and positive relationships.
68 I am satisfied that she enjoys a good relationship with Jack and Don, and there
was no suggestion to the contrary. I am satisfied also that she enjoys a good relationship with her older sister Ellen and that she clearly enjoyed being involved recently in the celebration of Ellen’s wedding. I have no doubt that she loves her mother, although I have some particular reservations, to which I will refer later in these reasons, about the state of health of that relationship.
69 The mother’s children, Jack and Don, clearly have a jaundiced view of the father
and the mother’s evidence was that they used derogatory expressions to describe him
and also Vikki.70 The mother disputed that she had ever suggested to Brianna that she refer to
Vikki as “nasty Vikki” or any other derogatory name. I have some difficulty accepting that evidence when it is the mother’s evidence that Jack and Don, if they say something derogatory about the father in Brianna’s presence, it would seem that they are not prevented from doing so. Given the mother’s clear hatred of the father and Vikki, I have little confidence that she would take any steps to prevent any adverse remark that is made about the father from being overheard by Brianna.
71 Brianna has positive relationships with her two elder half siblings Mike and
Allan who, I accept, make a point of visiting their father when Brianna is about. Mike gave evidence and I was impressed by a sense of genuine warmth that he held towards Brianna. Mrs C, Brianna’s grandmother, also gave evidence and spoke of a warm and loving relationship that existed between her and both of her paternal grandparents. The mother herself acknowledged that Brianna often spoke of her grandmother. I have no reason to doubt that Brianna has a close and warm relationship with Vikki, Michaela and Andrew. The applicant’s evidence about Brianna’s relationship with Vikki, Michaela and Andrew was not disputed.
72 The father also has a sister who resides in [the country].
73 The mother has family who live in the regional centre, her brother [Tony], step-
father [John] and her mother. Although her mother sat through the entirety of the proceedings, the relationship between mother and daughter appears to have some
[2010] FCWA 4
strain as the mother commented that her mother of late appeared to be spending more
time with her sister [Roseanne], who resides in [suburban Perth], than with her.74 The tension over Roseanne was expressed by the mother in the following terms
about her mother, who is “supposed to live in the regional centre” (her emphasis), and that she had “hardly seen her at all this year”, because it seems she spends more time with Roseanne. Although the mother had a relationship with her sister Roseanne when she lived in the regional centre before moving to Perth, seeing her a couple of times a week with her children [Gemma] 5½ and [Jane] 2½, since she moved to Perth in early 2008 the mother sees her rarely. She says she cannot afford to drive to Perth and that Roseanne cannot afford to drive to the regional centre and that she does not telephone her as it was “too depressing” and she had not seen her since Ellen’s wedding.
75 The mother’s brother Tony has two children, 14 and 16, and although the mother
does not have regular contact with him, she said she last saw him about six weeks ago
at her mother’s house.76 Although Jack and Don’s respective fathers reside in the regional are it would
seem that neither of them now has any relationship with their respective fathers, although until an incident that occurred late last year, Don was spending some time with his father.
77 As to the nature of the relationship between Brianna and her father, I find that it
is positive, beneficial and meaningful. I accept the father’s evidence that he does not denigrate the mother to Brianna and I accept his evidence that he tries to make their interaction a positive experience. He involves her in social activities as a full member of his household and promotes the relationship with her extended paternal family.
the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; and
the attitude to the child, and to the responsibilities of parenthood,
demonstrated by each of the child’s parents;
78 I consider these two factors together as they are the most significant in this case
and to a very large extent, overlap. In my consideration of these factors generally
there are some particular events or issues that require separate consideration.
Haircuts
79 In late January 2007, Vikki cut Brianna’s hair. The uncontested evidence of
Mr C was that Vikki was a professional hairdresser and that she styled Brianna’s hair. The mother described it as a “layered” cut. When the father next saw Brianna her hair had been closely cropped as a Number 2 or Number 3 clipper all over.
80 The photographs of Brianna’s effectively shaved head, had previously been
attached to an affidavit filed earlier in the proceedings and I received those two photographs, that is the “before” and “after” photographs of Brianna’s hair into evidence. The earlier one had been taken after she had had her hair cut, by Vikki, and
[2010] FCWA 4
before being returned to her mother, the latter after Brianna’s return to her father from
her mother’s.81 The mother’s answer as to why she cut Brianna’s hair as she did was because
there was an outbreak of “nits”. She claimed to have done so also to Jack and Don. The haircut and subsequent cropping occurred during school holidays, however when confronted with this fact, the mother’s response was that there were also nits at the child care centre that the children attended.
82 The father’s evidence was that that was the one and only time that Vikki or he had cut Brianna’s hair.
83 The mother makes accusations, such as those contained in the letter to Vikki, that she continues to cut Brianna’s hair. In her affidavit the mother says:
“Despite separating from respondent (sic) soon after the birth of their child [Andrew] [Ms E] continues to interfere with my child [Brianna]. [Brianna] informed me on Monday 19 October 2009 [Vikki] had cut her hair again and she started to cry. My daughter received a haircut from a professional hairdresser on 7 October 2009 so it was quite unnecessary and unwanted of [Vikki] to cut the child’s hair again on the weekend of 16/10 to 19/10. I have appealed to the Family Court numerous times to have an injunction made preventing [Vikki] or respondent (sic) from getting piercings or cutting her hair. I shouldn’t have to move out of town to enjoy the privileges of being the child’s mother.”
84 Mrs C gave evidence that she had seen Brianna with the father on the weekend
of 16 October 2009, and on 19 October 2009, in fact, took her to school at the end of the father’s period of time with her. Her evidence was that Brianna’s hair was not cut at that stage.
85 Mrs C next saw Brianna on Wednesday, 21 October 2009, when she came to
spend the night at her father’s. In fact, Mrs C picked her up from school. She noticed that Brianna’s hair had been cut. Her hair was shorter and it could not be put into a pigtail and was untidy. She said that it did not appear to have been cut by a professional hairdresser in that the fringe was uneven and the cut at the back was “jagged”.
86 I accept Mrs C as a witness of truth and I accept her evidence that Brianna
returned to her mother with her hair uncut on 19 October 2009, and that Brianna was then returned to, or collected from school by Mrs C on 21 October 2009, and her hair had been cut, unprofessionally as she described.
87 This then begs the question, who is cutting Brianna’s hair? Certainly, the father
and Vikki would not have had the opportunity to do so as alleged by the mother. The mother’s evidence is that she does not socialise in the evening and Brianna would otherwise have been at school. The father’s version, as he understands if from Brianna, is that the mother, whilst affected by alcohol, cuts Brianna’s hair and that this upsets Brianna.
[2010] FCWA 4
88 The mother has significant issues with alcohol, to which I will separately refer in
these reasons, however, I find the explanation offered by the father to be more credible than that offered by the mother as only the mother, it would seem, would have had the opportunity to have cut Brianna’s hair.
89 It may well be that the mother genuinely cannot remember having done so.
Indeed, as I have observed, during the period of the trial there were times when the mother had a complete apparent loss of memory of statements she had made over the three days of the trial.
90 I therefore accept the father’s version and I accept his unequivocal statement that the only time that either he or Vikki had cut Brianna’s hair was in January 2007.
The mother’s use of alcohol
91 The mother describes herself as an alcoholic. She says that she has her
alcoholism under control and that her alcohol abuse arose more from association with
others rather than being an issue for her, in the sense that it was self motivated.92 A pattern of the mother’s presentation throughout the trial was a failure on her
behalf to accept responsibility for her own actions. Indeed, it would seem that any negative consequence for the mother was always created by or the responsibility of a third person.
93 The mother described both Ellen’s father and Don’s father as alcoholics and that
when she is “left to her own devices [she doesn’t] drink much at all”. The mother’s consumption of alcohol has had a very clear affect on Don’s relationship with his father in that it ceased after the mother had driven her car, whilst under the influence, into the toilet block at the [caravan park] where Don’s father resides. The mother was driving there to collect Don who was spending time with his father.
94 Several times during her evidence the mother said that she had her alcoholism
under control.
95 There is no doubt that she has had a problem with alcohol in the past and now
has three “driving under the influence” convictions to her name. As I noted earlier, she is currently permitted to drive on an extraordinary licence. Don’s father then collected Jason from his [school activities] that night when she was taken to the police station.
96 The mother has clearly had a problem with alcohol in the past as I have
mentioned. I have grave reservations about her ability to self-manage her self described alcoholism and note that she has not sought any professional assistance. She seeks to sheet the responsibility for her alcohol consumption home to others rather than accepting that responsibility for herself. My concerns are deepened considering the explanation given by Brianna as to her haircuts (ie: that the mother cuts it, whilst affected by alcohol), particularly in the context of the allegations made in October this year.
[2010] FCWA 4
Communication between the parties and others
97 The mother is adamant that she does not wish to communicate with the father,
indeed in her amended application for final orders she sought orders in terms of “an injunction be placed on [Mr C], the respondent, and [Vikki] preventing them from handing or sending any items or forms of communication to me”. Such an application and approach is hardly compatible with cooperative parenting.
98 The attitude taken by the mother towards communication has manifested itself in
several ways.
99 The father had attempted to set up the use of a communication book. Three
communication books were admitted into evidence and the communications recorded in them, and particularly the information sought in the communications, were entirely appropriate. For example, Brianna’s immunisation history, the clarification for arrangements over a long weekend and an advice to the mother as to Brianna’s health during a period of time she spent with her father and advice as to the medication given. No responding communication was entered by the mother.
100 In evidence it became apparent that the mother refused to communicate using a
communication book and had either failed to return the communication book or, in one case, had run over it with her car. The use of a communication book was an appropriate attempt by the father, in my finding, to deal with issues that were relevant and appropriate and particularly given that the mother refuses to communicate with the father face to face.
101 However the absence of communication takes a more serious turn when it comes to the issue of communicating with schools.
102 In her affidavit the mother says at paragraph 12:
“He’s repeatedly slandered me to court and members of the community and makes my life as difficult as possible. He and his mother go to the school regularly and it’s obvious they have said things about me because I received a positive response from teachers, now I feel uncomfortable discussing issues about the child with them. I have been informed numerous times of false information he’s told people and don’t wish to be subjected to the bias he has caused.”
103 What is apparent is that the mother has now, for some time, elected not to
communicate with the school. For reasons which the mother could not substantiate, she feels that the school is set against her. It would appear that the mother has allowed this to spill over to Don. She asserts that Don now refuses to “attend assemblies in case the respondent is there”. It is unfair that Don’s education is being affected by the mother’s continued pettiness.
104 I am left with little doubt that Don’s attitude towards the father has been
poisoned by the attitude of the mother, who accepts that she does not hide Jack and Don from her feelings about the father. Regrettably, Don then becomes the loser, however it would seem that the mother is incapable of recognising that as a
[2010] FCWA 4
consequence of the posture she adopts in choosing to blame the father for an outcome
that she herself has generated.105 The mother appears unmotivated in terms of attempting to improve the
communication between the parties. In particular, the father proposed mediation and the mother accepts that she did not respond to the request. She further indicated that she had not found out what facilities were available in the regional centre to resolve disputes as she thought it would be “a waste of time”. The short term consequences of such an attitude are the loss of opportunities for Brianna, for example missing the school disco through a failure of communication, but it is the longer term consequences that are of greater concern in terms of the provision of unified support of her parents toward giving her the best opportunities when they are available.
School uniforms, clothes and bags
106 The parties are, regrettably, unable to adopt any cooperative approach to the exchange of school uniforms and the flow of clothing generally.
107 The mother takes a particularly negative stance against having anything that the
father has acquired for Brianna in her possession. So much so, that she has taken to returning school uniforms and bags and clothes by throwing them over the rear fence of the father’s property, into his driveway, onto the verge at the front of his property and on one occasion, having thrown the items then run over them with her car.
108 The father has acquired three sets of school uniforms this year and replacements.
109 The mother’s obsessive behaviour in this regard caused Brianna a particular loss
of an opportunity when it was “Pirates Day” at school. Brianna was late as a consequence of her mother being unable to find one of the “respondent’s shoes”, that is a shoe of a pair that had been purchased by the father. When I suggested to the mother that in fact they were Brianna’s shoes rather than the respondents, her response was a refusal to accept that as a proposition.
110 Another example where the mother cannot separate herself from her own
hostility and promote Brianna’s interests involves the loss of a gold bracelet. The father alleges that he and Vikki purchased Brianna a gold bracelet “some time ago” and that on one weekend he had forgotten to remove it prior to Brianna going back to her mother (as he had previously done). On her next visit the father asked Brianna where the bracelet was, to be told by Brianna that her mother had taken it off and thrown it from the car window. The mother denies there ever was a bracelet and suggests that this allegation is made up by the father.
111 I do not believe the mother, and I accept the father’s version of events. I also
accept that Brianna would have been distressed by the loss, something that clearly did
not factor into the mother’s thinking.
[2010] FCWA 4
Brianna’s social interaction
112 In her affidavit the mother, in paragraphs 8 and 9, complains of the difficulties
she has in socialising in the region as a consequence of the father and Vikki’s
presence. She says:8. “The respondent has been “in my face” (as he threatened he would be) for the last six and a half years. Perth will give me the opportunity to “have a life”. I am very much looking forward to attending my son Jack’s Anzac parade WITHOUT the respondent and his “[lady]” coming and standing a metre from me, talking very loudly and making a spectacle of themselves as they did this year.
9. I’ve no life in the regional centre because whenever I go anywhere respondent turns up (sic) and makes it uncomfortable for me to remain, so I don’t bother, hence myself and my children are missing out. We get one shot at life and the respondent shouldn’t be allowed to ruin it. I’m heartedly sick of not “having a life” because the respondent is “in my face”.
113 In cross-examination the question was put to her by counsel for the father
“where did you go that you don’t now?”, in answer to which the mother replied
“country shows, fun fairs, and ANZAC Day Parade”.114 The last ANZAC Day Parade was in 2009 and the mother complains that the
father and Vikki went to the same parade and stood near her. That allegation was not
tested in cross-examination of the father.115 The mother says that she used to go to market days on the first Sunday of the
month but had seen him there and left, it would seem, without any interaction between the mother and the father. However, the mother could not recall when it was that she had last seen the father at a market day.
116 The mother had last seen the father at a country show when Brianna was two
years of age.
117 Further, the mother went on to say that she sees the father regularly and turns around and walks away, although she could not remember when she last did that.
118 What is a concern is that the mother, it would seem, does not socialise or go to
friends’ homes. She said her last friend was “[K]” and he was the person that she was
drinking with the night that she crashed the car.119 The consequence for Brianna is that she does not have play dates, although the mother blames that fact on her loss of driver’s licence “so I can’t take her anywhere”.
120 Very sadly, it seems, Brianna does not get invited to birthday parties.
121 Brianna’s birthday fell on the day after the last day of trial. When asked what
arrangements the mother was going to make for Brianna’s birthday she originally said
[2010] FCWA 4
that she would have a birthday cake and family get-together with her brothers and
grandmother, although “all of her extended family are in Perth”.122 The following day, in her evidence, the mother changed her position about
Brianna’s birthday when she indicated that as it fell on a Thursday, that is after the mid week time that Brianna spends with the father, there was “no point in planning anything” as she would be “too tired and miserable after spending Wednesday night at her father’s”. As a consequence of the mother’s mean spirited attitude, Brianna, it would seem, was going to miss out on any celebration of her birthday with her mother.
Mid week contact
123 The mother sought orders that “mid week access be denied”.
124 In support of her application in this regard she says in paragraph 10 of her
affidavit:
“The mid week access continues to be very disruptive to both the child and the rest of my family. We have to put up with Brianna screaming and tantrums on a weekly basis. When in my care, we don’t face any of the ADHD-like behaviour (hypa-activity (sic), tantrums, screaming and destructiveness) that we face after she has been at her father’s.”
125 The mother says that she took Brianna to [Dr A] “a couple of years ago – at least
a couple of years”, but has not taken her back since. When asked about whether she had spoken to her teachers about the behaviour she replied “no”, she had only spoken, it would seem, with her family. The mother claims that Brianna is kept up very late, deliberately, by her father so as to affect her mood.
126 The mother reports that after Wednesday mid week she is quite aggressive and “tired and whingy”.
127 No comment has been made by any of Brianna’s teachers that she is tired.
128 Further, the mother says that she wanted to take Brianna to gym, “but that is on a
Wednesday”.
129 The picture the mother paints of Brianna’s behaviour and tiredness is in stark contrast with the evidence not only of the father, that Brianna’s usual bedtime is 7:30 pm, but also of his son Mark and his mother, who corroborate the father’s evidence about Brianna’s bedtimes.
130 The above highlights the patent desire of the mother to lay at the feet of the
father responsibility for any adverse circumstance, and if he was not directly available
to blame, then to lay it at the feet of the third party.131 The mother’s presentation borders on the obsessive and must have a direct
influence on Brianna. For example, in her cross-examination of the father she asked
him “why do you keep sending insects home?”.
[2010] FCWA 4
132 It appears that Brianna had spent some time with her grandmother and had taken
some slaters from her garden in a container for show and tell at school. The container
had been thrown out of the car, with Brianna’s bag, by the mother and then run over.133 The mother showed absolutely no insight as to the consequence of her actions
and her attitude.
134 I have little doubt that the mother does little to shield Brianna from her hostility
towards the father, and even if it is not vented directly to Brianna, certainly the mother informs Jack and Don of her attitude, which must inevitably “rub off” on Brianna. In stark contrast, the father has taken reasonable steps to try to improve communications, resolve disputes between the parties and seek professional assistance, for example, through Ms W.
135 In his evidence the father said that he had “tried to communicate and keep the door open” and I accept that he has been genuinely motivated in trying to do so.
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual
needs;
136 It is evident from the comments I have made earlier in this judgment that I have significant misgivings about the mother’s ability to provide for Brianna emotionally.
137 It would also seem that Brianna is, to some degree, isolated from the mother’s
extended family, geographically, in terms of Ellen and Roseanne, but as a consequence of the mother’s perception of favouritism in her own mother, Brianna presently appears to be isolated or have limited contact with her maternal grandmother.
138 The evidence was that Brianna only spends small periods of time with her other
relatives.
139 Clearly, however, Brianna has a close relationship with Jack and Don and I
accept that they are important people in her life. I strongly suspect however that Brianna is not shielded from the negativity that they are fed about the father by their mother.
140 There is little doubt that each of the parties can provide for Brianna’s physical needs in terms of accommodation and day to day care.
141 The father is significantly more emotionally balanced than the mother, in my
finding, and further, Brianna has the ongoing contact with the father’s extended family and I accept that she enjoys very close relations with both of her elder brothers and her grandmother.
[2010] FCWA 4
142 I have no reason to doubt, and it was not challenged, that Brianna has had a good
relationship with Michaela in the past and no doubt delights in having a baby brother, however, there is some uncertainty about the continuation of the father’s relationship with Vikki. If the relationship does not continue, then obviously some arrangement will need to be made between Vikki and the father as to ongoing time he spends with Andrew and appropriate involvement in that relationship by Brianna.
143 The father struggles with his literacy. He gave evidence that he is dyslexic and
despite spending 18 months as a young person in Perth to try to overcome the problems, he clearly still struggles as a result. He says he can read, albeit slowly, and it was apparent to me immediately when he was reciting his affirmation that he had difficulty reading the card provided to him. The father will need to be particularly vigilant in terms of Brianna’s learning and his communication with the school to ensure that he is doing everything that he can to ensure that Brianna is able to keep up, as the father, whilst he struggles with his own disability, may have some difficulties in assisting Brianna, particularly as she advances educationally.
144 As I reflected earlier, the mother clearly is a strong support for the children
intellectually. All three are doing well, and the mother has high aspirations for them
educationally.the practical difficulty and expense of a child spending time with an communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
145 Were Brianna to reside in Perth, or thereabouts, with her mother there would be
a significant impact upon her ability to maintain a relationship with her father. Irrespective of the lack of support that such a relationship may have from the mother, neither of the parties are in comfortable circumstances and they would both struggle to meet the costs of regular travel between the regional centre and Perth.
146 Whether that expense and/or difficulty will impact upon the child’s relationship
is, in my finding in this case, a secondary consideration to the capacity of the mother
in particular, to promote the relationship between Brianna and her father.147 The distance between Perth and the regional centre is not so great that practical difficulties could be overcome, were there a motivation to overcome them.
148 The mother’s position that she, if she goes to Perth, would seek to travel to the
regional centre “rarely, if ever” would place a greater burden on the father if he were
to spend any time with Brianna during school terms.
Discussion re relocation
149 Whilst the mother does not carry a burden of demonstrating any compelling
reasons for her proposed relocation, it is appropriate for the Court to consider the bona
fides of such an application.
[2010] FCWA 4
150 The mother indicated that her reasons for relocation, at trial, were 30% to get
away from the father and 70% to “see the world”. During the course of the trial the mother modified these percentages, as originally the percentage for removing herself from the father rated higher. The mother claimed to have held a desire to relocate since prior to the last trial, but failed to mention it to his Honour Justice Crooks, as “an over sight”.
151 Her position at trial presents somewhat of a contrast to that which she put in her
affidavit where she claims that “Jack intends to go to university and it would be ideal if we could get settled in Perth prior” (Jack is presently only in Year 9) and further, “my daughter Ellen now lives in Perth” and “my sister Roseanne lives in Perth”.
152 The mother’s plans were open-ended, to say the least. She did not know where
she intended to live, but sought to be close to both Roseanne, who resides in [the northern suburbs, and Ellen, who resides in [the southern suburbs], notwithstanding the fact that they live at opposite ends of the greater Perth metropolitan area and some nearly two hours apart by Freeway, yet she also wished to live in a semi rural or rural environment. The absence of plans was met by the response from the mother that there was little point in making plans if she did not know whether or not she could go. As she expressed it in her affidavit, “I haven’t made arrangements to get a rental in Perth yet. It’s hard to make definite plans when life is controlled by others”, yet, chillingly, the mother proposed to take Brianna to school and leave her there without being collected, to “prepare her for relocation”.
153 The mother is confident that she could find work in Perth, despite the fact that
she presently drives a van on an extraordinary licence and has stable employment available to her in the regional centre. The position in Perth would have to be uncertain by any measure given the restrictions placed on her driving licence, particularly if she was to live in a rural or semi rural environment.
154 The contrasts that emerge in the presentation of the mother’s case are
remarkable. Despite her withdrawing socially and from any form of communication with the father or indeed, exposing herself to any risk of having to communicate with the father, the mother claims that she wants Brianna to have a meaningful relationship with her father whilst not considering it necessary to communicate with him.
155 In cross-examination the mother was asked whether the father had tried to
communicate with her in the past, to which she answered “yes, I suppose in his condescending way and attempting to be in my face”. I am left with serious doubt that the mother would take any steps to promote the relationship between Brianna and her father, a relationship which I find is not only presently meaningful and significant, but one that will continue to be so, as will Brianna’s relationships with her father’s extended family.
156 I also have concerns as to the impact of the mother’s proposed relocation on
Brianna’s brothers. The mother does not enjoy any relationship with either of Jack or Don’s fathers. She did enjoy a limited relationship with Don’s father until the incident where she crashed her car into the toilet block whilst under the influence of alcohol. Throughout the trial, there was no logical explanation given as to why Don’s relationship with his father had ceased as a result of that incident.
[2010] FCWA 4
157 The mother represented that Don’s father agreed to Don being moved from the
regional centre to Perth. Mr H was not called to give evidence, nor did he swear an affidavit, nor was there any communication from him whatsoever that would corroborate the mother’s claim in this regard. When asked about it by me I was told that I could “subpoena him if I wanted to”.
158 The mother has four living children by different fathers. The father in this case
is the only father of any of the children who it would seem seeks to actively maintain, and to date has actively maintained, a relationship with the child. The mother’s response to his attempts in that regard is indicative more of an individual who wishes to exclude that contact and that relationship from the child’s life, rather than one who wishes to support it.
159 I am left with no confidence whatsoever that the mother would take any steps to
promote the relationship with the father were she to be permitted to relocate. In those circumstances I am not satisfied that it would be in Brianna’s best interests to permit her to be resident with the mother out of the regional centre as sought and, accordingly, the “relocation” aspect of the application will be dismissed.
Equal shared parental responsibility, equal time or substantial and significant time
160 As I noted earlier in these reasons, the parties presently have an order giving
them equal shared parental responsibility and as a consequence of that I must consider whether spending equal time with each of her parents would be in Brianna’s best interests and whether that is reasonably practicable to do so. The Family Court Act mandates that “if it is” in Brianna’s interests and reasonably practicable for her to spend equal time with each parent, then I must consider making an order to provide for her to spend equal time with each of her parents.
161 Having regard to the nature of the relationship between the parties and the
problems that have flowed from the mid week contact, I find that to maintain mid week contact separately from any block time that Brianna spends with her father would be a source of potential difficulty for Brianna given the mother’s response to such time.
162 From a practical point of view, having mid week contact increases the potential
for tension between the parties and I propose to make orders that incorporate the time that the father spends with Brianna into one block, initially a five day block, moving to a seven day block in mid 2010, to give Brianna the opportunity of settling into the changed regime.
163 In the event that the mother continues to reside in the regional centre, I consider
it in Brianna’s best interests that the parties continue to share equally, parental responsibility. This requires them to communicate, which they presently do not do. At the conclusion of the evidence in this case I made certain orders about the mother attending the “Building Connections Course” and undertaking counselling. I express the hope that upon complying with those orders and following through on any counselling that the mother will take steps to improve the level of communication with the father and separate her interests and needs from those of Brianna.
[2010] FCWA 4
164 As I have indicated earlier in these reasons, the mother’s position was that if I
did not permit her to relocate with Brianna then she would leave the regional centre anyway and leave Brianna behind. In those circumstances the mother thought it was in Brianna’s best interests that she discontinue her relationship with her.
165 Whilst I do not find that would be in Brianna’s best interests, if that is the
position that the mother adopts, then clearly continuing an order for equal shared parental responsibility would become a nonsense and be entirely impractical as the mother will have chosen not to have a relationship with Brianna, irrespective it would seem of the inevitable consequences of that decision and such a decision being contrary to Brianna’s best interests.
166 In those circumstances however, it would be appropriate that an order be made
for the father to have sole parental responsibility for Brianna and I propose to so order.
167 At the conclusion of the trial counsel for the father presented a comprehensive
Minute of Orders Sought by the father. The orders included the provision for Brianna to spend time with each of the parties on her birthday and their respective birthday. The orders also provided for arrangements for Easter when it did not fall within a school holiday period.
168 Given the observations I have made about the nature of the relationship between
the parties, I am concerned to minimise handovers and accordingly I decline to make orders that require Brianna to spend time with each of the parties on her birthday or on the parties’ birthdays or Easter when it does not fall during a school holiday period. I am concerned that to arrange or order that there be contact between the parties on those days, would merely have the effect of spoiling the day or the occasion for Brianna.
169 Nothing of course prevents the parties from agreeing for Brianna to spend time
with each of them on these occasions, but otherwise it is my view that birthdays will be “where they fall” in terms of Brianna’s time with the parties and of course the opportunity will be available in any event for them to have a celebration with Brianna very soon thereafter.
170 The one exception that I propose to make, however, is as to Mother’s and
Father’s Day where I do propose to make orders as sought that Brianna spend
Mother’s Day with the mother and Father’s Day with the father in any event.
Proposed orders
1. Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 11 of the orders of the Honourable Justice Crooks of 18 and 19 February 2008 be and the same are hereby discharged.
2. That the parties and each of them are restrained and an injunction is hereby ordered restraining them and each of them from changing the place of residence of the child, BRIANNA D born [in] November 2003 (“Brianna”), from the regional centre.
[2010] FCWA 4
3. In the event that the applicant mother, Ms D, shall cease to reside in the regional centre then and in that case the following shall apply:
(i) The respondent father shall have sole parental responsibility for Brianna and Brianna shall reside with him; (ii) Brianna shall spend time with the applicant mother and communicate with the applicant mother as may be agreed between the parties or in default of agreement as ordered. 4. In the event that the applicant mother shall continue to reside in the regional centre then the following shall apply:
(i) The parties have equal shared parental responsibility for Brianna; (ii) Brianna shall live with the respondent father, Mr C, as follows:
(a) for the first and second school terms of 2010 from after school Wednesday until the commencement of school on Monday in each alternate week; (b) from the commencement of third term 2010 from the end of school Friday until the commencement of school on the following Friday in each alternate week; (c) during school holidays for one half of all school holiday periods with Brianna to live with the respondent father for the first half of all school holiday periods in even numbered years and with the mother in odd numbered years; (d) for one half of the Christmas school vacation with Brianna to live with the father for the first half of the Christmas school vacation commencing in December 2010 and each alternate year thereafter; with Brianna to reside with the mother for the first half of the Christmas school vacation commencing December 2011 and each alternate year thereafter save and except that when Brianna shall be living from 8:00 am Boxing Day to 6:00 pm on the 28th day of with the father then she shall spend time with the mother December, and when she is residing with the mother she shall spend time with the father from 8:00 am Boxing Day to 6:00 pm on the 28th December;
(e) in the event that handover occurs on a non school day then such handover shall occur at 3:00 pm and the parties are to hand over the child by the party who is to collect Brianna, doing so from the other party’s home and waiting outside the premises, with Brianna being permitted to walk to the waiting parent.
5. In the event that Brianna shall not be residing with the mother on Mother’s Day or the father on Father’s Day then and in such case the time Brianna spends with the respective parent shall be suspended to the intent that she shall spend from 5:00 pm Saturday evening until the commencement of school Monday with her mother or her father, as the case may be, on
[2010] FCWA 4
Mother’s and Father’s Day respectively and for the purpose of commencement of such time the party to whom Brianna is going shall collect her from the other party’s place of residence.
6. The parties and each of them do authorise and direct the school at which Brianna attends to issue notices, copies of school reports and other correspondence to each of the parties and in the event that the school is unable to do so then the parties and each of them are to ensure that each notice or report is copied by them and provided to the other party by placing the same in Brianna’s school bag on the Friday morning when Brianna is to commence to reside with the other party.
7. The parties and each of them are to inform the other of any medical issues, such as any appointments, specialist treatment, attendance at hospitals and doctor’s appointments or any emergencies, regarding Brianna by text to the other party’s mobile telephone.
8. The parties and each of them are to notify the other of any change in their proposed place of residence and telephone numbers, both landline and mobile if applicable, at least 14 days prior to any anticipated change, such notification to be in writing addressed to the person’s place of residence or otherwise to their notified postal address if applicable.
9. The parties and each of them are restrained and an injunction is hereby granted restraining them and each of them from cutting Brianna’s hair or allowing any other person to do so unless by a duly qualified hairdresser in an operating hairdressing salon or business.
10. The application and response do otherwise stand dismissed
I certify that the preceding [170] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
0